Director of Public Prosecutions v Paulino (Ruling No 4)
[2017] VSC 346
•16 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0036
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FERNANDO MANUEL PAULINO |
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JUDGE: | BELL J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 14 and 28 October 2016 |
DATE OF RULING: | 16 June 2017 |
CASE MAY BE CITED AS: | DPP v Paulino (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 346 |
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CRIMINAL LAW – trial of accused on charge of murder – prosecution case wholly circumstantial - admissibility and exclusion of evidence – CCTV footage and related photographs of motor vehicle – footage and photographs of low and very low quality and varying limited content – relevance to opportunity of accused to commit crime and identity of killer – evidence of vehicle examiner identifying vehicle by viewing footage and photographs – whether proper expert evidence – whether examiner had specialised knowledge based on training, study and experience – whether examiner’s evidence based on that knowledge – whether examiner’s identification of vehicle was admissible or that issue was wholly a matter for jury based on its own viewing – whether footage and photographs of sufficient quality and content to allow identification of vehicle – whether taken in overall circumstantial case footage and photographs were capable of supporting finding that vehicle belonged to accused – whether probative value of evidence outweighed by danger of unfair prejudice to accused – Evidence Act 2008 (Vic) ss 55(1), 56(2), 79(1) and 137.
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APPEARANCES: | Counsel | Solicitors |
| For the prosecution | Mr A Tinney QC | Office of Public Prosecutions Victoria |
| For the accused | Mr D Dann QC with Ms O Trumble | Tony Hargeaves & Partners |
HIS HONOUR:
In this trial of the accused on a charge of murdering his wife,[1] the defence objects to the relevance of CCTV footage and related photographs that the prosecution intends to lead as evidence (see ss 55(1) and 56(2) of the Evidence Act 2008 (Vic)) and alternatively seeks its exclusion (s 137). The footage and photographs depict the movements of a motor vehicle, which the prosecution alleges is a 2003 PA Mitsubishi Challenger (‘the vehicle’) owned by the accused, at three different locations. The defence also objects to the admissibility of expert evidence that the prosecution intends to lead in relation to the identification of that vehicle in the footage and photographs.
[1]For more details, see the previous rulings: DPP v Paulino (Ruling No 1) [2017] VSC 343 (16 June 2017) (Bell J); DPP v Paulino (Ruling No 2) [2016] VSC 344 (16 June 2017) (Bell J); DPP v Paulino (Ruling No 3) [2017] VSC 345 (16 June 2017) (Bell J). These are the reasons for decision for the ruling I made on 3 November 2016. On 16 June 2017, the jury delivered a verdict of guilty.
The case against the accused is wholly circumstantial. As revealed in the prosecution opening, the prosecution alleges that the deceased was killed at about 9.00 pm on 15 July 2013 at her home at Massey Avenue, Reservoir. It is alleged that the accused had the opportunity to commit the crime (the manner of the killing leaves no doubt that it was a murder) because he could have travelled from his home at 1 Gretal Court, Taylors Lakes to Massey Avenue, Reservoir and back again between the hours of 7.22 pm and 10.04 pm on the evening concerned. The three pieces of footage and the photographs allegedly capture the vehicle of the accused near his home at Apollo Road, Taylors Lakes at 7.22 pm, near Massey Avenue, Reservoir between about 9.32-9.44 pm and then at Taylors Road, St Albans not far from where the accused lives at 10.04 pm.
The footage was taken by cameras located at residential premises not far from the home of the accused (Apollo Road, Taylors Lakes and Taylors Road, St Albans) and commercial premises near where the deceased was killed (Massey Avenue, Reservoir). The photographs are derived from the footage. There is also footage capturing the accused visiting the Safeway Supermarket at the Watervale Shopping Centre, also in Taylors Road, Taylors Hill, at 10.21 pm and entering the driveway of his mother’s home nearby in Domain Drive, Hillside at 10.31 pm. These latter two pieces of footage are not the subject of defence objection.
As revealed in the record of interview of the accused, the defence case is that the accused left his home in the vehicle at about 8.00 pm, drove to various premises in the surrounding area to pick up items of hard rubbish for repair and sale (the accused is an electrician and does this for extra income), drove to the supermarket and his mother’s premises and then drove back to his home. He has denied committing the murder and pleaded not guilty.
Police seized the vehicle during the investigation of the crime. They also obtained and watched many hours of potentially relevant CCTV footage. Small sections were isolated for more intense examination as they depicted a vehicle of interest. The footage from Massey Avenue, Reservoir is of very low quality and hardly viewable. The footage from the other two locations is of low quality but viewable. As to whether it is possible for a jury to find that the three pieces of footage and photographs depict the vehicle of the accused, I accept the submissions of the defence that each must be assessed individually. I will do so after considering the objection to the evidence of the vehicle examiner, Peter Bishop.
Evidence of vehicle examiner
Section 79(1) of the Evidence Act provides:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
I reject the submission of the defence that any so-called expert evidence identifying the vehicle depicted in the footage and photographs is not admissible upon the ground that viewing them does not require specialised knowledge and is entirely a matter for the jury. This is not a case where the footage and photographs can be viewed and comprehended as well by a juror without specialised knowledge as by experts with that knowledge. Their content and quality in relation to all three locations is such that the vehicle identification evidence could or would legitimately assist the jury to make or not to make findings about the vehicle depicted.
I also reject the related submission of the defence that vehicle identification is not a proper subject of specialised knowledge based on training, study and experience. The external physical characteristics of vehicles of a particular make and year, such as the vehicle in question, is such a subject. An expert possessing such knowledge may be able, and in this case is able, to identify the make and year of a vehicle from CCTV footage and related photographs far better and more accurately than a non-expert, as Mr Bishop’s evidence reveals.
Mr Bishop possesses that specialised knowledge, based upon his training, study and experience, in relation to Mitsubishi motor vehicles. That company has employed him for over 13 years, currently in regional service development and technical management. His duties include dealer service development, customer relations and technical inquiries, vehicle evaluations, service engineering and warranty administration. He is a qualified motor mechanic, mechanical engineer and technical education instructor. He is a member of the Australian Institute of Automotive and Mechanical Engineers. His expertise includes the external physical features of Mitsubishi vehicles of the kind in question.
I take into account that Mr Bishop had not previously been asked to perform a task like this or give such evidence in a court. Given the nature of the issue in question, I think this is not surprising and goes to the probative value not the admissibility of his evidence. Mr Bishop was not given the entire footage viewed by the police (of many hours in length) but only the short sections (and related photographs) depicting the vehicle of interest. He was not asked to identify the vehicle in the footage and photographs ‘blind’ but rather was asked to identify whether the vehicle depicted was a Mitsubishi Challenger like the one owned by the accused, ie the ‘suspect’s actual vehicle’. The informant even told Mr Bishop that he hoped that he could so identify the vehicle. I would not describe this process as ideal but this too goes to probative value not admissibility.
The defence relied upon Smith v The Queen[2] where two police officers with previous dealings with the accused gave evidence at the trial that he was one of two alleged offenders depicted in CCTV footage. The High Court upheld an appeal upon the ground that the evidence of the officers was irrelevant because the officers were in no better position than members of the jury to view the footage and determine whether the accused was one of the persons depicted.[3]
[2](2001) 206 CLR 650 (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) (‘Smith’).
[3]Ibid 654-5 [9]-[11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
As submitted by the prosecution, Smith is to be distinguished from the present case. It was made very clear in Smith that the evidence of the officers might have been admissible if their identification of the accused had been based upon particular knowledge. To this effect, Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
Neither police officer suggested that he had any basis for concluding that it is the appellant depicted in the bank photographs other than the knowledge that he had gained of the appellant's physical appearance during those earlier encounters and whatever was revealed to a person who looked at the photographs that were produced in evidence. There was no suggestion that the physical appearance of the appellant had changed materially between the time when the photographs were taken and the time of the trial, or that the police, by reason of their previous observations of the appellant, were at some advantage in recognising the person in the photographs.[4]
In the present case, Mr Bishop does have particular knowledge.
[4]Ibid 654-5 [9].
I would compare the present case with Meade v The Queen.[5] Distinguishing Smith, Maxwell P, Redlich and Whelan JJA upheld the ruling of the trial judge to permit expert evidence to be given about the footwear being worn by the accused as depicted in CCTV footage. Their Honours held:
The position in Smith was quite different. The two police officers in Smith had nothing relevant to contribute to the evidence. They could add nothing probative to the material which was before the jury, other than their own opinions based upon material which was relevantly no different from that which the jury also had. On any view, [the footwear expert] could add significant relevant material to that which was before the jury.[6]
[5][2015] VSCA 171 (26 June 2015).
[6]Ibid [187].
In the presence case, the evidence makes clear that Mr Bishop has much to add to any viewing by the jury of the footage and photographs (except in relation to Massey Avenue, Reservoir: see below). Like the analogous evidence of the marketing and product manager of the footwear manufacturer in Meade,[7] Mr Bishop’s evidence of the external features of Mitsubishi motor vehicles reflects his specialised knowledge based on the training, study or experience, as required by s 79(1) of the Evidence Act.
[7]Ibid [188].
The defence relied upon Anandan v The Queen[8] in which the informant was permitted (over defence objection) to give evidence about what could be seen on CCTV footage and related still photographs. The jury was directed that they had to decide what was depicted but were allowed to take the informant’s evidence into account in doing so.
[8][2011] VSCA 413 (12 December 2011) (Nettle JA, Coghlan and Lasry AJJA).
The Court of Appeal unanimously held that the evidence of the informant’s interpretation of the footage and photographs was inadmissible. Nettle JA described the evidence as evidence of ‘opinion … that could not rationally affect the assessment by the jury of the question of what happened’.[9] Coghlan AJA (Lasry AJA agreeing) described the evidence as ‘irrelevant’.[10]
[9]Ibid [11]; for discussion of why such evidence cannot rationally affect such an assessment, see Smith (2001) 206 CLR 650, 655 [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[10]Ibid [60].
I do not accept the submissions of the defence that the situation in Anandan is to be compared with the situation in the present case. There, the informant’s evidence was simply an interpretation of what could equally be comprehended by the jury upon viewing the footage and photographs concerned. Here, Mr Bishop’s evidence constitutes expert opinion about what can be seen in the footage and photographs (being the external features of vehicles of the kind depicted) based upon his training, study and experience.
The defence also relied upon R v Banhelyi.[11] There, the trial judge permitted a collision analyst to give evidence interpreting CCTV footage and related still photographs of a motor vehicle accident. North J (Holmes JA and Fryberg J agreeing) held that the witness was not an expert in photography or the interpretation of such footage and photographs, and their interpretation was entirely a matter for the jury.[12] In reaching this conclusion, the Court of Appeal took into account that the footage and photographs were not of high quality and that the witness had strayed beyond the area of his expertise.[13] Here, Mr Bishop does possess relevant specialised knowledge and his evidence falls within that knowledge, being the external features of particular kinds of motor vehicles.
[11][2012] QCA 357 (18 December 2012) (Holmes JA, Fryberg and North JJ).
[12]Ibid [19]-[20].
[13]Ibid [20].
For those reasons, the expert evidence of the vehicle examiner is admissible. I turn now to the three pieces of footage and photographs in question.
Massey Avenue, Reservoir
Whether the accused is the killer of the deceased is the principal fact in issue in this case. Evidence that a vehicle of the kind owned by him was being driven at the time of and nearby to the place of the killing would therefore be relevant to his guilt and admissible under ss 55(1) and 56(2) of the Evidence Act. In that respect, this case is very like Bayley v The Queen[14] where similar evidence was admitted in a trial where the culpability of the accused for a definite crime was also the principal fact in issue. The test of relevance applied by Warren CJ, Weinberg and Priest JJA was whether, ‘as part of the overall circumstantial case’, the disputed evidence was ‘capable of supporting an inference that the … car’ shown in the footage ‘was that belonging to the [accused]’.[15] Consistently with that test, the court commented favourably on the ruling of the trial judge that (among other things) the jury could only use the footage in question if they were satisfied that the vehicle belonged to the accused.[16] Accordingly, I will consider here whether, as part of the overall circumstantial case, the footage and photographs are capable of supporting an inference that the vehicle depicted belonged to the accused.
[14][2016] VSCA 160 (13 July 2016) (Warren CJ, Weinberg and Priest JJA) (‘Bayley’).
[15]Ibid [129].
[16]Ibid [133]. With respect, I consider para’s [129]-[133] of the joint judgment to be a coherent whole, contrary to the submissions of the prosecution in the present case.
For the purposes of the ruling in relation to Massey Avenue, Reservoir I am prepared to assume in favour of the prosecution that it has DNA evidence linking the deceased to the vehicle, although I have ruled this evidence to be inadmissible.[17] I have granted a certificate in respect of an interlocutory appeal against this ruling.[18]
[17]DPP v Paulino (Ruling No 2) [2016] VSC 650 (28 October 2016) (Bell J).
[18]DPP v Paulino (Ruling No 5) [2016] VSC 659 (3 November 2016) (Bell J).
I conducted a view of Massey Avenue, Reservoir, including the scene of the killing and the nearby commercial premises from which the footage was taken. As regards the traffic passing on the adjacent road, the position of the cameras was not one of advantage.
I have viewed the footage (and the photographs). Unassisted, I could not myself identify the vehicle depicted as the vehicle of the accused and I do not think an ordinary juror could do so.
With his expertise, Mr Bishop saw much more in the footage than I did and that an ordinary juror could. He was able to point out certain features of the vehicle and to identify its general type, although the characteristics that he observed and described were relatively few. He could not positively identify the vehicle as a Mitsubishi Challenger. He thought it was a four-wheel drive vehicle like a Toyota Land Cruiser, Nissan Patrol or Mitsubishi Pajero (including Challenger) from the late 1980s, the 1990s or the 2000s. He could not exclude other possibilities.
In my view, there is plainly not enough in the Massey Avenue, Reservoir footage itself, even viewed with the assistance of Mr Bishop’s expert evidence, to permit a jury to find that the vehicle depicted is the vehicle of the accused. Moreover, the combined evidence of the footage, Mr Bishop’s evidence and the prosecution case as described in the prosecution opening is also plainly not enough to permit a jury to find that the vehicle depicted is the vehicle of the accused.
In the language of the judgement of the Court of Appeal in Bayley, the footage in relation to Massey Avenue, Reservoir, taken as part of the overall circumstantial case, is incapable of supporting an inference that the vehicle depicted is that belonging to the accused. Therefore this evidence is irrelevant under s 55(1) and inadmissible under s 56(2) of the Evidence Act. The point here is not that the jury could not so infer beyond reasonable doubt, for the jury could be satisfied about this matter on the balance of probabilities,[19] but that any such inference could, on the evidence, only be speculative.
[19]See Jury Directions Act 2015 (Vic) s 61.
Apollo Road, Taylors Lakes and Taylors Road, St Albans
As with the Massey Avenue, Reservoir footage and photographs, the issue in relation to the admissibility of the Apollo Road, Taylors Lakes and Taylors Road, St Albans footage and photographs is whether, as part of the entire circumstantial case, they are capable of supporting an inference that the vehicle depicted is the Mitsubishi Challenger of the accused. If the evidence of the footage is so capable, it is relevant and admissible (subject to exclusion).
The prosecution submits that the footage relates to a fact in issue, being the opportunity of the accused to commit the crime. The Apollo Road, Taylors Lakes footage was taken at about 7.22 pm and shows a vehicle of interest being driven at that time in an easterly direction towards the home of the deceased in Massey Avenue, Reservoir (about 22 minutes driving time away). The Taylors Road, St Albans footage was taken at about 10.04 pm and shows a vehicle of interest being driven at that time near the home of the accused. If the vehicle of interest in both cases is the Mitsubishi Challenger of the accused, these times would show that he had the opportunity to commit the crime, for the deceased was killed at about 9.00 pm.
For the purposes of the ruling in relation to Apollo Road, Taylors Lakes and Taylors Road, St Albans I am prepared to assume in favour of the defence that the prosecution does not have DNA evidence linking the deceased to the vehicle, for (as already noted) I have ruled this evidence to be inadmissible.
I have conducted a view of the two private premises from which the footage was taken and considered the angle of camera-view. I have viewed the two pieces of footage (and the photographs.) The quality of the footage and photographs from both locations is better than in the case of Massey Avenue, Reservoir. In consequence, the contents are clearer to the unassisted eye, and even more so when considered with the other footage and the photographic evidence of the vehicle of the accused to which objection is not taken.
In his evidence, Mr Bishop positively identifies the vehicle depicted in the footage and photographs as a Mitsubishi Challenger PA model 1997 to 2005. In support of this conclusion, he points impressively to several of its particular features. It is relevant to the weight but not the admissibility of his evidence that he admitted the possibility that the vehicle might be of another kind, for he was of the view that it was a Mitsubishi Challenger. Contrary to the submissions of the defence, he was in a position to say that it was two-toned in colour, like the vehicle of the accused, although he could not positively identify what the colours were.
The position here is to be distinguished from the Massey Avenue, Reservoir footage and photographs, which do not, in the context of the entire evidence, support an inference that the vehicle depicted is the vehicle of the accused. A combination of the contents and somewhat better quality of the footage and photographs in relation to Apollo Road, Taylors Lakes and Taylors Road, St Albans, Mr Bishop’s evidence and the evidence as generally described in the prosecution opening, assuming that this combined evidence is accepted by the jury, would support that inference. It is therefore relevant under s 55(1) and admissible under s 56(2) of the Evidence Act.
Exclusion of evidence
As I set out in a previous ruling:[20]
[20]DPP v Paulino (Ruling No 3) [2016] VSC 644 (28 October 2016) [40]-[43] (Bell J).
· prosecution evidence may be excluded in a criminal proceeding where its probative value is outweighed by the danger of unfair prejudice to the accused;[21]
[21]Evidence Act s 137.
· probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;[22]
[22]Evidence Act pt 1 of the Dictionary.
· the power to exclude evidence is expressed in terms of an evaluative judgment not a discretion;[23]
· assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires consideration of the highest possible use of the evidence;[24]
· reliability and credibility do not come into that assessment.[25]
[23]Director of Public Prosecutions v Wise [2016] VSCA 173 (21 July 2016) [50]-[51] (Warren CJ, Weinberg and Priest JJA).
[24]Ibid.
[25]IMM v The Queen (2016) 330 ALR 382, 390 [39] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’).
In relation to Massey Avenue, Reservoir, I have concluded that the footage and photographs are not admissible upon the ground of irrelevance. If I am wrong in that conclusion, the probative value of this evidence is low if not miniscule because of the very low quality of the footage and photographs and the equivocal and qualified evidence of Mr Bishop. I would exclude this evidence because its probative value is outweighed by the danger that the jury will fail to apply their own mind to what the footage and photographs depict and allow Mr Bishop’s expert testimony ‘to distract it from making its own assessment of the evidence’.[26]
[26]Nguyen v The Queen (2007) 173 A Crim R 557, 568 [65] (Spigelman CJ, James and Hislop JJ).
In relation to Apollo Road, Taylors Lakes and Taylors Road, St Albans, I consider that the probative value of the footage and photographs, when considered together with Mr Bishop’s evidence, is good. Its highest use will be to assist the prosecution case in relation to the issue of the opportunity of the accused to commit the crime. Making the required assumption that the jury will accept this evidence,[27] I take into account that the jury will probably consider that the footage and photographs are of low quality and have limited contents and that the process followed to obtain Mr Bishop’s evidence was not ideal. This reduces the probative value of the evidence somewhat but not beneath good. I reject the submissions of the defence that the footage and photographs have poor probative value.
[27]IMM (2016) 330 ALR 382, 390 [39] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’).
Against this good probative value, in the context of the low quality and limited contents of the footage and photographs, it is necessary to consider the danger that Mr Bishop’s evidence will give rise to a ‘displacement effect’ and thereby to unfair prejudice to the accused. In this connection, I would emphasise that the issue of unfair prejudicial affect must be considering by reference to the footage and photographs and Mr Bishop’s evidence.
I think there is some danger that jurors will substitute their own natural capacity to view the footage and photographs with the evidence of Mr Bishop. Impermissibly, their own views could thereby be displaced. The danger of that occurring is a danger of unfair prejudice to the accused,[28] for the jury would be much more likely not to make a finding that the vehicle depicted belongs to the accused without Mr Bishop’s evidence.
[28]See Smith (2001) 206 CLR 650, 655 [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
However, I do not think that danger is very great and can be managed. Although the footage and photographs are of low quality and have limited contents, they are viewable and likely to be of assistance to the jury. The jury will be able apply their own minds to this evidence. In that regard, I have ruled that Mr Bishop’s evidence will be of legitimate use and is admissible. As in all such trials, the jury will be charged properly to evaluate Mr Bishop’s expert evidence in accordance with directions that I will give. With those directions, I think the danger of unfair prejudice in the nature of ‘displacement’ is minimal and does not outweigh the probative value of the evidence.
Conclusion
For the reasons given in this ruling, I have concluded that:
· the evidence of the vehicle examiner is admissible;
· the evidence of the footage and photographs in relation to Massey Avenue, Reservoir is not admissible or alternatively should be excluded;
· the evidence of the footage and photographs in relation to Apollo Road, Taylors Lakes and Taylors Road, St Albans is admissible and should not be excluded.
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